An employee who is refused employment without any cause is entitled to reinstatement and back wages.

JUDGMENT :

Raja Basu Chowdhury, J.

1. The present writ application has been filed, inter alia, challenging an award dated 19th September, 2019, passed by the Learned 7th Industrial Tribunal, West Bengal in case no.41 of 2013.

2. It is the case of the petitioner that he had been employed by the respondent no.4 in the year 2001. Subsequently, since, 4th February, 2013, Mr. Sandeep Kumar Rajpuria without any cause refused entry of the petitioner to office premises thereby, preventing him to join his duty. On account of refusal of employment as aforesaid, the petitioner was prompted to seek intervention of the Labour Commissioner. Since, the conciliation proceeding did not yield any fruitful result, after expiry of the statutory period, he filed an application under Section 2A(2) of the Industrial Disputes Act, 1947 (hereinafter referred to as the “said Act”) before the Learned 7th Industrial Tribunal, West Bengal and the same was registered as Case of 41 of 2013. The respondent no.4 duly participated in the said proceeding by filing written statement. On the basis of the pleadings of the parties, Learned 7th Industrial Tribunal was, inter alia, pleased to frame the following issues:-

“1. Whether the case is maintainable in both facts and in law?

2. Whether is termination by way of refusal of employment w.e.f. 4.2.2013 of the workman by the Company justified?

3. Whether is the workman entitled to re-instatement alongwith back wages and any other consequential benefits during the period of forced unemployment?

4. Any other reliefs?”

3. Although, the Learned 7th Industrial Tribunal on the basis of the evidence on record had arrived at a finding that there was an employee and employer relationship between the petitioner and the respondent no.4, however, by concluding the petitioner had failed to prove, he was refused employment with effect from 4th February, 2013, and by accepting that the petitioner was retained on the rolls of the respondent no.4 dismissed the said application.

4. Mr. Huda, learned Advocate representing the petitioner, submits that the petitioner after being refused permission to join his duties, had lodged a complaint on 2nd April, 2013, with the Tiljala Police Station. The said complaint was exhibited in the aforesaid proceeding. By relying on the records of the proceeding, inter alia, the cross-examination of the witness of the respondent no.4, he submits that notwithstanding the management witness claiming that the petitioner had remained absent from 4th February, 2013, no action was taken against the petitioner for his absence, which according to the respondent no.4 was unauthorised. Ordinarily, if an employee absents from duty, as per standing orders, action is taken. In this case since, the petitioner was refused employment, no action was taken against the petitioner. The case of absence from duty, for such a prolonged period without any action against the petitioner is not plausible. Admittedly, the management witness had accepted the petitioner to be an employee of the respondent no. 4, however, in an attempt to wiggle out of the liability, he had claimed that the petitioner is on the roll of the company. In the given fact, the learned Tribunal ought to have directed the respondent no.4 to reinstate the petitioner and ought not to have held that the petitioner has failed to prove his case with regard to refusal of employment. He submits that the petitioner in the application under Section 2A(2) of the said Act, has prayed for reinstatement with full back wages. That the petitioner is unemployed till this date. Despite the award, the petitioner has not been permitted to join his duty. By drawing attention of this Court to the representation dated 12th June, 2013, he stated that the respondent no.4 had not even bothered to respond to the petitioner’s representation. The aforesaid would clearly establish the case